The Hindu Marriage Act: Application, and Who is a Hindu

The Explanation

The Explanation to section 2 answers the question the section raises about children. A person is a Hindu, Buddhist, Jaina or Sikh:

(a) if both parents are, whether the child is legitimate or illegitimate;

(b) if one parent is, and the child is brought up as a member of the tribe, community, group or family to which that parent belongs or belonged, again whether legitimate or illegitimate; or

(c) if the person is a convert or re-convert to any of those religions.

Clause (b) is the one to hold on to. Where the parents are of different religions the child's status is not decided by which parent, or by the father, but by how the child was actually brought up. That is a question of fact.

Two more sub-sections that are easy to miss

Section 2(2) takes members of a Scheduled Tribe, within the meaning of Article 366(25) of the Constitution, out of the Act altogether, unless the Central Government directs otherwise by notification. They remain governed by their own custom. This is a real exception and MU has asked about it.

Section 2(3) provides that "Hindu" anywhere in the Act is to be read as including a person who, though not a Hindu by religion, is a person to whom the Act applies by virtue of section 2. It closes the loop: once clause (c) catches you, every later section that says "Hindu" means you.

Section 3: the definitions the rest of the Act runs on

Section 3 defines seven expressions. Four of them decide questions elsewhere in the Act.

Custom and usage, section 3(a). Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in a local area, tribe, community, group or family. Two provisos qualify it: the rule must be certain and not unreasonable or opposed to public policy, and a rule applicable only to a family must not have been discontinued by that family.

This is the definition that lets a custom override the Act in the places where the Act allows it, most importantly in section 5(iv) and 5(v) on prohibited relationships and sapindas, and in section 7 on ceremonies. Note what has to be proved: continuity, uniformity, long observance, certainty, and that the rule is not unreasonable or against public policy. A practice is not a custom because it is old and common; it must have obtained the force of law.

District court, section 3(b). Where there is a city civil court, that court; elsewhere the principal civil court of original jurisdiction, and any other civil court the State Government notifies. This matters for the jurisdiction chapter, where section 19 decides which district court a petition goes to.

Full blood, half blood and uterine blood, sections 3(c) and 3(d). Two people are related by full blood when descended from a common ancestor by the same wife, and by half blood when descended from a common ancestor but by different wives. They are related by uterine blood when descended from a common ancestress but by different husbands. The Explanation adds that "ancestor" includes the father and "ancestress" the mother.

Sapinda relationship, section 3(f). This is asked almost every year, and the numbers have to be right.

Sapinda relationship with reference to any person extends as far as the third generation inclusive in the line of ascent through the mother, and the fifth generation inclusive in the line of ascent through the father. The line is traced upwards in each case from the person concerned, who is counted as the first generation.

Two persons are sapindas of each other if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant who is within those limits with reference to each of them.

Count carefully. The person concerned is generation one, not generation zero. So on the father's side you go up to the great-great-great-grandfather, and on the mother's side to the great-grandmother.

Degrees of prohibited relationship, section 3(g). Two persons are within the degrees of prohibited relationship:

• if one is a lineal ascendant of the other;
• if one was the wife or husband of a lineal ascendant or descendant of the other;
• if one was the wife of the brother, or of the father's or mother's brother, or of the grandfather's or grandmother's brother, of the other; or
• if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

The Explanation to clauses (f) and (g) is the part students forget. For both sapinda relationship and prohibited relationship, "relationship" includes relationship by half or uterine blood as well as full blood, illegitimate blood relationship as well as legitimate, and relationship by adoption as well as by blood. An adopted child acquires these disabilities in the adoptive family exactly as a natural child would.

Section 4: overriding effect

Section 4 provides that, save as otherwise expressly provided in the Act:

(a) any text, rule or interpretation of Hindu law, or any custom or usage as part of that law, in force immediately before the Act commenced ceases to have effect with respect to any matter for which provision is made in the Act; and

(b) any other law in force immediately before the commencement ceases to have effect in so far as it is inconsistent with the Act.

This is the hinge between this module and the whole of Module II. The classical law is not abolished wholesale. It ceases to have effect with respect to any matter for which provision is made in this Act, and no further. So the classical law of marriage is displaced, because the Act provides for marriage; the classical law of the joint family survives, because this Act says nothing about it.

The words "save as otherwise expressly provided" are what allow custom to keep operating in sections 5(iv), 5(v) and 7. Where the Act itself invites custom in, section 4 does not shut it out.

A worked example

Anil's father is a Hindu and his mother a Christian. He was brought up in his mother's church and married a Christian in church. His brother Sunil was brought up as a Hindu and married a Hindu by saptapadi. Their cousin, a member of a Scheduled Tribe in Jharkhand, married by tribal custom.

Does the Act apply to Anil? Probably not. Section 2(1)(c) applies the Act to a person domiciled in India who is not a Muslim, Christian, Parsi or Jew by religion, and the Explanation (b) treats as a Hindu any child, legitimate or illegitimate, one of whose parents is a Hindu and who is brought up as a member of the tribe, community, group or family to which such parent belongs. Anil was brought up a Christian, so he is not a Hindu for the Act.

And Sunil? Explanation (b) makes him a Hindu, and the Act applies.

And the cousin? Section 2(2): nothing in the Act applies to a member of a Scheduled Tribe within the meaning of Article 366(25) unless the Central Government by notification otherwise directs. His marriage is governed by his tribal custom.

Suppose Sunil later converts to Christianity. He is no longer a Hindu, but the Act still governs his existing marriage: his conversion becomes a ground of divorce for his wife under section 13(1)(ii), and it does not dissolve the marriage by itself.

What if he reconverts? Explanation (c) treats a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion as a Hindu.

Which definitions does the rest of the Act run on? Section 3: custom and usage; district court; full blood, half blood and uterine blood; degrees of prohibited relationship; and sapinda, three generations up through the mother and five through the father, counting the person as the first.

And what happens to the old law? Section 4: any text, rule or interpretation of Hindu law or custom ceases to have effect on matters for which the Act makes provision, and any inconsistent other law ceases to apply. That is why the joint family survives: the Act makes no provision for it.

What it does NOT mean

The Act does not define a Hindu positively. It applies to Hindus, Buddhists, Jainas and Sikhs, and then residually to whoever in India is not a Muslim, Christian, Parsi or Jew.

Birth does not settle it. A child of mixed parentage follows the community in which the child is brought up.

A Scheduled Tribe is not covered. Not unless the Central Government notifies otherwise.

Section 4 does not sweep away all the classical law. It displaces it only where the Act makes provision.

Sapinda is not counted from the ancestor. The line is traced upwards from the person concerned, who is the first generation.

The two lines are not the same length. Three generations through the mother, five through the father.

Quick revision

• s.1: the Act extends to the whole of India. s.2: applies to Hindus, Buddhists, Jainas and Sikhs by religion, and residually to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew; the Explanation covers a child both of whose parents are Hindus, a child one of whose parents is and who is brought up in that parent's community, and a convert or reconvert. s.2(2): not to a Scheduled Tribe unless notified.
• s.3: custom and usage, continuously and uniformly observed, certain, not unreasonable, not opposed to public policy; district court; full, half and uterine blood; degrees of prohibited relationship; and sapinda, three generations up through the mother, five through the father, counting the person as the first.
• s.4: overriding effect; the old law ceases to have effect on matters for which the Act makes provision, which is why the joint family survives.

Test yourself

1. To whom does the Hindu Marriage Act apply? To any person who is a Hindu, Buddhist, Jaina or Sikh by religion in any of its forms or developments; and to any other person domiciled in India who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that such person would not have been governed by Hindu law had the Act not been passed. It does not apply to a member of a Scheduled Tribe unless the Central Government by notification otherwise directs.

2. A child has one Hindu parent. Is the child a Hindu for the Act? Only if the child is brought up as a member of the tribe, community, group or family to which the Hindu parent belongs or belonged. That is Explanation (b) to section 2(1).

3. What is sapinda relationship? Under section 3(f), it extends as far as the third generation inclusive in the line of ascent through the mother, and the fifth inclusive in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. Two persons are sapindas if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant within them.

4. What is the effect of section 4? Any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement ceases to have effect with respect to any matter for which provision is made in the Act, and any other law in force before the commencement ceases to apply so far as it is inconsistent with the Act.